B-148964, AUG. 21, 1962

B-148964, AUG. 21, 1962

TO LINK-BELT SPEEDER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE SPECIFICATION REQUIREMENTS UNDER INVITATION FOR BIDS NO. PROCUREMENT OFFICE, CHICAGO, ILLINOIS.

THE INVITATION REQUESTED BIDS FOR FURNISHING SIX SELF-POWERED, DIESEL, PILE DRIVER HAMMERS WITH A STRIKING POWER OF 650,000 FOOT POUNDS PER MINUTE, TOGETHER WITH SPARE PARTS, IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. BY AMENDMENT NO. 1, DATED MAY 7, 1962, THE SPECIFICATIONS WERE MODIFIED BY ADDING THE FOLLOWING PROVISION: "THE AVERAGE STRIKING ENERGY PER BLOW SHALL BE NOT LESS THAN 15,000 FT.LBS.'

YOU STATE THAT ONLY TWO CONCERNS IN THE UNITED STATES MANUFACTURE DIESEL PILE HAMMERS, MCKIERNAN-TERRY CORPORATION AND LINK-BELT SPEEDER CORPORATION. IT IS CONTENDED THE REQUIREMENT OF THE SPECIFICATION THAT THE AVERAGE STRIKING ENERGY OF THE HAMMER SHALL NOT BE LESS THAN 15,000 FOOT POUNDS PER BLOW MAKES THIS PROCUREMENT RESTRICTIVE TO ONLY ONE MANUFACTURER. IN THIS CONNECTION IT IS STATED IN YOUR LETTER OF MAY 15, 1962, TO THE CONTRACTING AGENCY, IN PART, AS FOLLOWS:

"PARAGRAPH 3.6 OF THE PURCHASE DESCRIPTION STATES THAT THE HAMMERS,"SHALL BE FURNISHED WITH A DRIVE CAP OR CAPS ADEQUATE FOR DRIVING AT LEAST 13 INCH DIAMETER WOOD PILES, 8 INCH H-BEAMS AND SHEET PILING.' WE ARE POSITIVE THAT A 7,500 FOOT POUND PER BLOW DIESEL HAMMER IS ALL THAT IS REQUIRED FOR THESE PILING. THE REQUIREMENT FOR A 650,000 FOOT POUND PER MINUTE STRIKING ENERGY DIESEL HAMMER IS COMPLETELY NON-RESTRICTIVE AND THIS, IN ADDITION TO THE 7,500 FOOT POUND REQUIREMENT, WOULD PERMIT BOTH UNITED STATES MANUFACTURERS TO BID COMPETITIVE MODELS.

"LINK-BELT SPEEDER CORPORATION MANUFACTURES A DIESEL HAMMER PRODUCING A MAXIMUM OF 15,000 FOOT POUNDS ENERGY PER BLOW, HOWEVER, THIS IS IN THE MIDDLE SIZE RANGE AND WOULD, UNDER THE PRESENT AMENDMENT, BE REQUIRED TO COMPETE PRICE WISE WITH A COMPETITIVE UNIT IN THE SMALLEST SIZE RANGE. THE PRICE DIFFERENCE, AS A RESULT, IS AN INSURMOUNTABLE AND UNFAIR PENALTY. FURTHER, PARAGRAPH 3.4.4 STATES THAT THE "HAMMERS SHALL BE CAPABLE OF OPERATING WITHIN THE PILE DRIVER LEADS.' IT IS IMPOSSIBLE FOR LINK-BELT SPEEDER TO BID A 15,000 FOOT POUND HAMMER THAT WILL FIT WITHIN THESE LEADS, HOWEVER, OUR 7,500 FOOT POUND PER BLOW - 650,000 FOOT POUNDS PER MINUTE DIESEL HAMMER WILL FIT WITHIN THESE LEADS.'

THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT THE EQUIPMENT IS BEING PURCHASED FOR THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, FOR USE BY U.S. NAVAL CONSTRUCTION BATTALIONS. UPON RECEIPT OF YOUR PROTEST THE CONTRACTING AGENCY REFERRED IT TO THE NAVY, AND THEY INSIST THAT NO DEVIATION BE PERMITTED FROM THE 15,000 FOOT POUNDS OF ENERGY PER BLOW REQUIREMENT AND THAT A LIGHTER HAMMER IS NOT SUITABLE FOR THE INTENDED USE.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. ALSO HAS BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE EVERY EFFORT TO BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. WHERE DIFFERENCES OF OPINION EXIST AS TO THE GOVERNMENT'S NEEDS, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE USING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. COMP. GEN. 554.

IN THE INSTANT CASE IT HAS NOT BEEN SHOWN THAT NAVY'S DETERMINATION IS CLEARLY ERRONEOUS AND, THEREFORE, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO AN AWARD UNDER THE INVITATION FOR BIDS HERE INVOLVED. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.